Griffin et al v. Stillie et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
DOUG SMITH, et al.,
Plaintiffs,
v.
ANNE HELZER, et al.,
Defendants,
and
ALASKANS FOR BETTER
ELECTIONS, INC.,
Intervenor-
Defendant.
Case No. 3:22-cv-00077-SLG
ORDER RE MOTIONS FOR PRELIMINARY INJUNCTION
Before the Court at Docket 18 is Plaintiffs’ motion for a preliminary
injunction.1 Defendants responded in opposition at Docket 30,2 and Intervenor-
Defendant Alaskans for Better Elections, Inc. (“ABE”), also responded in
1 Plaintiffs are Doug Smith, Robert Griffin, Allen Vezey, Albert Haynes, Trevor Shaw, Families of
the Last Frontier, and Alaska Free Market Coalition. Plaintiffs additionally filed a motion for a
preliminary injunction at Docket 7. This order addresses both motions, which involve the same
three claims. Also pending before the Court are motions to dismiss filed by Defendants and
Intervenor-Defendant Alaskans for Better Elections (“ABE”) at Dockets 31 and 33, respectively.
ABE incorporated by reference its motion to dismiss into its opposition to the motion for
preliminary injunction. See Docket 34 at 3.
2 Defendants are the five members of the Alaska Public Offices Commission who are sued in
their official capacities: Commission Chair Anne Helzer and Commission members Van
Lawrence, Richard Stillie, Jr., Suzanne Hancock, and Dan LaSota.
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opposition at Docket 34. Plaintiffs filed their reply at Docket 39. Oral argument
was held in Anchorage, Alaska on June 13, 2022.
BACKGROUND
On November 3, 2020, Alaskan voters enacted by initiative Ballot
Measure 2, entitled “An Act Replacing the Political Party Primary with an Open
Primary System and Ranked-Choice General Election, and Requiring Additional
Campaign Finance Disclosures” (“the Measure”).3 The Measure officially became
law 90 days later on February 28, 2021.4 On June 9, 2021, the Alaska Public
Offices Commission (“APOC”) adopted regulations implementing the Measure.5 In
April 2022, Plaintiffs initiated this action and filed a motion for a preliminary
injunction seeking to enjoin the enforcement of several provisions of Alaska’s
campaign finance laws, including certain provisions added by Ballot Measure 2.6
The ranked-choice voting provisions of the Measure were challenged in
state court and upheld by the Alaska Supreme Court.7 The present litigation
concerns three sets of campaign finance provisions. First, the Measure imposes
disclosure requirements on donors to organizations that make independent
3 Docket 33-1 at 2, 36–37 (Kendall Aff., Ex. C, “Ballot Language and Legislative Affairs
Summary for Ballot Measure 2”). The Ballot Measure is also referred to on the Ballot Measure
itself as “Alaska’s Better Elections Initiative.” See Docket 33-1 at 7 (Kendall Aff., Ex. A).
4 Docket 40 at 4, ¶ 17 (Am. Compl.).
5 Id. at ¶ 18.
6 Docket 1 (Compl.); Docket 7.
7 Kohlhaas v. State, Case No. S-18210 (Alaska Jan. 19, 2022).
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expenditures in elections. Pursuant to Section 7 of the Measure, Alaska Statute
§ 15.13.040 is amended to impose a reporting requirement on “[e]very individual,
person, nongroup entity, or group that contributes more than $2,000 in the
aggregate in a calendar year to an entity that made one or more independent
expenditures in one or more candidate elections”;8 the reporting must be made
within 24 hours of the time that the donation was made.9 In conjunction with
Section 7, Section 15 of the Measure amends Alaska Statute § 15.13.390(a) to
establish new civil penalties for contributors who fail to comply with Section 7.10
8 Although the text of Section 7 purports to add a new subsection (s) to Alaska Statute
§ 15.13.040, the text of Section 7 is codified under Alaska Statute § 15.13.040(r). Accordingly,
the Court refers to subsection (r) throughout this order, except when quoting the text of Ballot
Measure 2.
9 Section 7 reads in full: “(s) Every individual, person, nongroup entity, or group that contributes
more than $2,000 in the aggregate in a calendar year to an entity that made one or more
independent expenditures in one or more candidate elections in the previous election cycle, that
is making one or more independent expenditures in one or more candidate elections in the
current election cycle, or that the contributor knows or has reason to know is likely to make
independent expenditures in one or more candidate elections in the current election cycle shall
report making the contribution or contributions on a form prescribed by the commission not later
than 24 hours after the contribution that requires the contributor to report under this subsection
is made. The report must include the name, address, principal occupation, and employer of the
individual filing the report and the amount of the contribution, as well as the total amount of the
contributions made to that entity by that individual, person, nongroup entity, or group during the
calendar year. For purposes of this subsection, the reporting contributor is required to report and
certify the true sources of the contribution, and intermediaries, if any, as defined by
AS 15.13.400(18). This contributor is also required to provide the identity of the true source to
the recipient of the contribution simultaneously with providing the contribution itself.”
10 Section 15 adds a new subsection (2) that reads: “A person who, whether as a contributor or
intermediary, delays in reporting a contribution as required by AS 15.13.040(s) is subject to a
civil penalty of not more than $1,000 a day for each day the delinquency continues as
determined by the commission subject to right of appeal to the superior court”; and a new
subsection (3) that reads: “A person who, whether as a contributor or intermediary, misreports or
fails to disclose the true source of a contribution in violation of AS 15.13.040(s) [Ballot Measure
2, Section 7] or AS 15.13.074(b) is subject to a civil penalty of not more than the amount of the
contribution that is the subject of the misreporting or failure to disclose. Upon a showing that the
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Second, Ballot Measure 2 amends existing statutory financial disclaimer
requirements for political communications. Section 11 of the Measure provides
that the requisite disclaimers be easily discernable throughout the “entirety” of the
“broadcast, cable, satellite, internet or other digital communication.”11 Section 12
of the Measure adds a new subsection to Alaska Statute § 15.13.090 applicable
to political communications by print or video that are “paid for by an outside-funded
entity,” which requires a disclaimer throughout the entirety of the communication
stating that “A MAJORITY OF CONTRIBUTIONS TO (OUTSIDE-FUNDED
ENTITY’S NAME) CAME FROM OUTSIDE THE STATE OF ALASKA.”12 Prior to
the implementation of Ballot Measure 2, political communications were already
violation was intentional, a civil penalty of not more than three times the amount of the
contribution in violation may be imposed. These penalties as determined by the commission are
subject to right of appeal to the superior court.”
11 Section 11 reads in full: “AS 15.13.090(c) is amended to read: (c) To satisfy the requirements
of (a)(1) of this section and, if applicable, (a)(2)(C) of this section, a communication that includes
a print or video component must have the following statement or statements placed in the
communication so as to be easily discernible, and in a broadcast, cable, satellite, internet or
other digital communication the statement must remain onscreen throughout the entirety
of the communication; the second statement is not required if the person paying for the
communication has no contributors or is a political party: This communication was paid for by
(person’s name and city and state of principal place of business). The top contributors of
(person’s name) are (the name and city and state of residence or principal place of business, as
applicable, of the largest contributors to the person under AS 15.13.090(a)(2)(C)).” (Amended
text in bold.)
12 Section 12 adds a new subsection (g) to Alaska Statute § 15.13.090, which reads: “To satisfy
the requirements of (a)(1) of this section and, if applicable, (a)(2)(C) of this section, a
communication paid for by an outside-funded entity as that term is defined in AS 15.13.400(19)
that includes a print or video component must have the following statement placed in the
communication so as to be easily discernible, and in a broadcast, cable, satellite, internet or
other digital communication the statement must remain onscreen throughout the entirety of the
communication; the statement is not required if the outside entity paying for the communication
has no contributors or is a political party: ‘A MAJORITY OF CONTRIBUTIONS TO (OUTSIDE-
FUNDED ENTITY’S NAME) CAME FROM OUTSIDE THE STATE OF ALASKA.’”
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required by statute to include: (1) a sponsor disclaimer stating who paid for the
communication; and (2) a disclaimer listing the names and locations of the person
or organization’s top three contributors.13
Third, Ballot Measure 2 creates new statutory requirements applicable to
independent expenditure entities regarding “dark money” and the “true source” of
contributions to these entities. “Dark money” is defined by Section 17 as “a
contribution whose source or sources, whether from wages, investment income,
inheritance, or revenue generated from selling goods or services, is not disclosed
to the public.”14 Section 6 of the Measure amends Alaska Statute § 15.13.040(j)(3)
to require an independent expenditure entity to report on the “true source” of
“contributions and all intermediaries” over $2,000.15 And pursuant to Section 9,
“[i]ndividuals, persons, nongroup entities, or groups subject to AS 15.13.040(s)
may not contribute or accept $2,000 or more of dark money as that term is defined
13 Alaska Stat. § 15.13.090(a)(1), (2).
14 Section 17 reads in full: “AS. 15.13.400 is amended by adding a new paragraph to read: (17)
‘dark money’ means a contribution whose source or sources, whether from wages, investment
income, inheritance, or revenue generated from selling goods or services, is not disclosed to the
public. Notwithstanding the foregoing, to the extent a membership organization receives dues
or contributions of less than $2,000 per person per year, the organization itself shall be
considered the true source.”
15 Section 6 reads in full: “AS 15.13.040(j)(3) is amended to read: (3) for all contributions
described in (2) of this subsection, the name, address, date, and amount contributed by each
contributor, [AND] for all contributions described in (2) of this subsection in excess of $250 in the
aggregate during a calendar year, the principal occupation and employer of the contributor, and
for all contributions described in (2) of this subsection in excess of $2,000 in the
aggregate during a calendar year, the true source of such contributions and all
intermediaries, if any, who transferred such funds, and a certification from the treasurer
that the report discloses all of the information required by this paragraph.” (Amended text
in bold.)
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in AS 15.13.400(17),” and disclosure of the true source of funds is required of
contributions made by intermediaries.16 Finally, Section 14 imposes a requirement
on the recipient entity to report the “true source” and “all intermediaries” of certain
contributions within 24 hours of receipt,17 and Section 18 provides a statutory
definition of “true source” as used in Section 14.18
LEGAL STANDARD
In Winter v. Natural Resources Defense Council, Inc., the Supreme Court
held that plaintiffs seeking preliminary injunctive relief must establish that (1) they
are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in
16 Section 9 reads in full: “AS 15.13.074(b) is amended to read: (b) A person or group may not
make a contribution anonymously, using a fictitious name, or using the name of another.
Individuals, persons, nongroup entities, or groups subject to AS 15.13.040(s) may not
contribute or accept $2,000 or more of dark money as that term is defined in
AS 15.13.400(17), and may not make a contribution while acting as an intermediary
without disclosing the true source of the contribution as defined in AS 15.13.400(18).”
(Amended text in bold.)
17 Section 14 reads in full: “AS 15.13.110 is amended by adding a new subsection to read:
(k) Once contributions from an individual, person, nongroup entity, or group to an entity that
made one or more independent expenditures in one or more candidate elections in the previous
election cycle, that is making one or more independent expenditures in one or more candidate
elections in the current election cycle, or that the contributor knows or has reason to know is
likely to make independent expenditures in one or more candidate elections in the current
election cycle exceed $2,000 in a single year, that entity shall report that contribution, and all
subsequent contributions, not later than 24 hours after receipt. For purposes of this subsection,
the entity is required to certify and report the true source, and all intermediaries if any, of the
contribution as defined by AS 15.13.400(18).”
18 Section 18 reads in full: “AS 15.13.400 is amended by adding a new paragraph to read:
(18) ‘true source’ means the person or legal entity whose contribution is funded from wages,
investment income, inheritance, or revenue generated from selling goods or services. A person
or legal entity who derived funds via contributions, donations, dues, or gifts is not the true
source, but rather an intermediary for the true source. Notwithstanding the foregoing, to the
extent a membership organization receives dues or contributions of less than $2,000 per person
per year, the organization itself shall be considered the true source.”
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the absence of preliminary relief; (3) the balance of equities tips in their favor; and
(4) a preliminary injunction is in the public interest.19 Winter places the burden on
a plaintiff to make a showing on all of the Winter factors before a court will issue a
preliminary injunction.20
“Courts asked to issue preliminary injunctions based on First Amendment
grounds face an inherent tension: the moving party bears the burden of showing
likely success on the merits . . . and yet within that merits determination the
government bears the burden of justifying its speech-restrictive law.”21
Accordingly, “in the First Amendment context, the moving party bears the initial
burden of making a colorable claim that its First Amendment rights have been
19 555 U.S. 7, 20 (2008). When, as here, the government is a party to the action, “the balance
of equities factor and the public interest factor merge.” Jones v. Bonta, 34 F.4th 704, 713 (9th
Cir. 2022) (citing Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014)).
20 See All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). Following Winter,
the Ninth Circuit addressed the first element—the likelihood of success on the merits—and held
that the Circuit’s “serious questions” approach to preliminary injunctions was still valid “when
applied as a part of the four-element Winter test.” Id.at 1131–35. Accordingly, if a plaintiff
shows “that there are ‘serious questions going to the merits’—a lesser showing than likelihood
of success on the merits—then a preliminary injunction may still issue if the ‘balance of
hardships tips sharply in the plaintiff’s favor.’” Friends of the Wild Swan v. Weber, 767 F.3d 936,
942 (9th Cir. 2014) (quoting Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th
Cir. 2013)). “Serious questions are ‘substantial, difficult, and doubtful, as to make them a fair
ground for litigation and thus for more deliberative investigation.’” Gilder v. PGA Tour, Inc., 936
F.2d 417, 422 (9th Cir. 1991) (quoting Republic of the Philippines v. Marcos, 862 F.2d 1355,
1362 (9th Cir. 1988) (en banc)). They “need not promise a certainty of success, nor even
present a probability of success, but must involve a ‘fair chance on the merits.’” Id. (quoting
Marcos, 862 F.2d at 1362). All of the Winter elements must still be satisfied under this approach
for a preliminary injunction to issue.
21 Cal. Chamber of Com. v. Council for Educ. & Rsch. on Toxics, 29 F.4th 468, 478 (9th Cir.
2022) (alteration in original) (quoting Thalheimer v. City of San Diego, 645 F.3d 1109, 1115 (9th
Cir. 2011)).
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infringed, or are threatened with infringement, at which point the burden shifts to
the government to justify the restriction on speech.”22
DISCUSSION
For a preliminary injunction to issue, the Court must determine that each of
the Winter factors are satisfied. The Court turns first to assessing Plaintiffs’
likelihood of success on the merits. Because Plaintiffs advance a facial, as
opposed to an as-applied, challenge to certain provisions of Alaska election law,23
Plaintiffs must demonstrate that a “substantial number of applications [of the
challenged provisions] are unconstitutional, judged in relation to [their] plainly
legitimate sweep.”24 In that regard, courts will not engage in “speculat[ion] about
‘hypothetical’ or ‘imaginary’ cases.”25
I. Likelihood of Success on the Merits
A. Count I
In Count I, Plaintiffs assert that “[c]ompelling individual donors to report
donations to independent expenditures violates the First Amendment.”26
22 Thalheimer, 645 F.3d at 1116, overruled on other grounds by Bd. of Trs. of Glazing Health &
Welfare Tr. v. Chambers, 941 F.3d 1195 (9th Cir. 2019).
23 See Docket 39 at 18 (Plaintiffs acknowledging that “[t]his is a facial challenge,” “not an as-
applied challenge”).
24 Ams. for Prosperity Found. v. Bonta, 141 S. Ct. 2373, 2387 (2021) (quoting United States v.
Stevens, 559 U.S. 460, 473 (2010)).
25 Yamada v. Snipes, 786 F.3d 1182, 1201 (9th Cir. 2015) (citing Wash. State Grange v. Wash.
State Republican Party, 552 U.S. 442, 450 (2008)).
26 Docket 40 at 17.
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Specifically, Plaintiffs allege that the donor disclosure requirements in Sections 7
and 15 of Ballot Measure 2 are unconstitutional for two reasons: (1) “because they
compel individual independent expenditure donors to report donations within 24
hours to Defendants when the recipient organizations must also report them”; and
(2) because “they require donors to report donations to groups that are not actively
engaged in independent expenditures.”27
1. Standard of Review
The Court agrees with the parties that the appropriate standard of review
applicable to resolution of Count I is exacting scrutiny.28 To withstand exacting
scrutiny, “there must be ‘a substantial relation between the disclosure requirement
and a sufficiently important governmental interest.’”29 That is, “the strength of the
governmental interest must reflect the seriousness of the actual burden on First
Amendment rights.”30 “While exacting scrutiny does not require that disclosure
regimes be the least restrictive means of achieving their ends, it does require that
they be narrowly tailored to the government’s asserted interest.”31 Narrow tailoring
“require[s] a fit that is not necessarily perfect, but reasonable; that represents not
27 Docket 40 at 17–18, ¶¶ 88, 91.
28 Docket 18-1 at 7 (citing Ams. for Prosperity Found, 141 S. Ct. at 2383); Docket 30 at 5.
29 Ams. for Prosperity Found., 141 S. Ct. at 2383 (quoting Doe v. Reed, 561 U.S. 186, 196
(2010)).
30 Id. (quoting Reed, 561 U.S. at 196).
31 Id. at 2383.
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necessarily the single best disposition but one whose scope is in proportion to the
interest served.”32
2. Sufficiently Important Governmental Interest
The parties dispute whether the State has a sufficiently important interest to
justify the challenged provisions of Ballot Measure 2. Defendants contend that the
State has two important interests with regard to the challenged provisions of the
Measure: (1) “the State’s interest in an informed electorate” and (2) the State’s
interest in “‘deterr[ing] actual corruption and avoid[ing] the appearance of
corruption by exposing large contributions and expenditures to the light of
publicity.’”33
Plaintiffs, to the contrary, assert that Defendants lack a sufficiently important
governmental interest in relation to the challenged provisions of Ballot Measure 2.
They concede that “laws requiring disclosure of campaign contributions may serve
a governmental interest.”34 But, specifically as to the donor disclosure
requirement, Plaintiffs maintain that because the State already requires each
independent expenditure entity to report the donations that it receives, “[t]here is
32 See id. at 2384 (quoting McCutcheon v. FEC, 572 U.S. 185, 218 (2014)).
33 Docket 30 at 5–7 (quoting Buckley v. Valeo, 424 U.S. 1, 67 (1976)).
34 Docket 18-1 at 7 (citing Buckley, 424 U.S. at 81).
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no state interest in requiring individual donors to report information to the
government that the government already has.”35
The Court finds that the State has a sufficiently important governmental
interest in providing voters with information related to the source of funds received
by independent expenditure entities. The Supreme Court and the Ninth Circuit
have repeatedly recognized that disclaimer and disclosure laws advance the
important governmental interest of “providing the voting public with the information
with which to assess the various messages vying for their attention in the
marketplace of ideas.”36 In Citizens United v. FEC, for example, the Supreme
Court noted that the challenged disclaimer requirement, which applied to
electioneering communications funded by independent groups, served an
important state interest because a reasonable disclosure requirement “enables the
electorate to make informed decisions and give proper weight to different speakers
and messages.”37 And in Buckley v. Valeo, the Supreme Court recognized that
disclosure and disclaimer requirements help citizens “make informed choices in
35 Docket 18-1 at 10; see Alaska Stat. § 15.13.040(d).
36 Hum. Life of Wash. Inc. v. Brumsickle, 624 F.3d 990, 1008 (9th Cir. 2010); see also Citizens
United v. FEC, 558 U.S. 310, 368 (2010); McConnell v. FEC, 540 U.S. 93, 196 (2003), overruled
on other grounds by Citizens United, 558 U.S. 310; First Nat’l Bank v. Bellotti, 435 U.S. 765, 792
n.32 (1978) (“Identification of the source of advertising may be required as a means of
disclosure, so that the people will be able to evaluate the arguments to which they are being
subjected.”); Buckley, 424 U.S. at 76; Family PAC v. McKenna, 685 F.3d 800, 806 (9th Cir.
2012) (noting the “important (and even compelling) informational interest” in “informing the
voting public” through disclosure of contributions to ballot measure committees).
37 558 U.S. at 371.
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the political marketplace,” particularly when independent groups run ads “while
hiding behind dubious and misleading names.”38 Indeed, while disclaimers may
burden First Amendment rights in some ways, they also “advanc[e] the democratic
objectives underlying the First Amendment” because “[p]roviding information to the
electorate is vital to the efficient functioning of the marketplace of ideas.”39 The
Ninth Circuit, too, has recognized that the government’s informational interest in
election communications is “vital,” “important and well recognized.”40 And the
Ninth Circuit has stressed that “[a]ccess to reliable information becomes even
more important as more speakers, more speech—and thus more spending—enter
the marketplace, which is precisely what has occurred in recent years.”41
Accordingly, the State has demonstrated a sufficiently important governmental
interest as required by the exacting scrutiny standard.42
38 Id. at 367 (describing holding of Buckley) (quoting McConnell, 540 U.S. at 197).
39 Brumsickle, 624 F.3d at 1005.
40 Id. at 1008, 1017.
41 Id. at 1007.
42 The Court further finds that the State has an important governmental interest in deterring the
appearance of and actual corruption in elections, as well as foreign influence in elections. See
Alaska Stat. § 15.13.068. Indeed, the Supreme Court has long recognized that disclosure laws
“deter actual corruption and avoid the appearance of corruption by exposing large contributions
and expenditures to the light of publicity.” Buckley, 424 U.S. at 67. However, as the Court finds
that Plaintiffs are unlikely to prevail on their claim that the challenged provisions are un
constitutional based on their substantial relationship to the State’s informational interest, it does
not separately address the anti-corruption interest in this order.
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3. Substantial Relationship
Plaintiffs contend that the donor disclosure requirement in Section 7 of Ballot
Measure 2 is not justified by a substantial and narrowly tailored relationship with
the State’s informational interest because it is unduly burdensome and duplicative
of other reporting requirements, and because it is not sufficiently related to a
specific election.43 The Court discusses each claim in turn.
a. The Donor Disclosure Requirement Is Not Unduly
Burdensome
Plaintiffs assert that the “burdensome nature” of the donor disclosure
requirement “suffices by itself to render the requirement unconstitutional” for three
reasons.44 First, they contend that Section 7 imposes “compliance burdens
typically reserved for sophisticated parties” on “anyone who writes a moderate-
sized check” and maintain that “[r]equiring individuals to meet standards usually
reserved for sophisticated parties violates the First Amendment.”45 Second,
Plaintiffs assert that the obligation to report donations within 24 hours is “a
tremendous burden.”46 Third, Plaintiffs contend that compliance with the donor
disclosure requirement demands “both encyclopedic and prophetic knowledge of
Alaska independent expenditure groups,” because “a donor must report not only a
43 Docket 18-1 at 7–12.
44 Docket 18-1 at 8.
45 Docket 18-1 at 8–9 (citing Sampson v. Buescher, 625 F.3d 1247, 1259 (10th Cir. 2010)).
46 Docket 18-1 at 9.
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contribution to an active independent expenditure group, but also a contribution to
any group that has made independent expenditures in the past two years or is
likely to do so in the future.”47
In response, Defendants contend that compliance with the disclosure
requirements is neither “tremendous[ly] burden[some]” nor does it require
“encyclopedic and prophetic knowledge.”48 Defendants assert that “the plaintiffs
offer no evidence that individual donors will find compliance difficult” and describe
the burden as limited to “filling out a single online form.”49 Defendants further argue
that the donor disclosure requirement is narrowly tailored to further the State’s
claimed interests and as such survives exacting scrutiny.50
The Court finds that the donor disclosure requirement is not unduly
burdensome so as to render Sections 7 and 15 unconstitutional. Foremost,
Plaintiffs provide no evidence to suggest that filling out the online form required by
Section 7 within 24 hours of making a contribution is difficult. Indeed, Plaintiffs fail
to provide evidence from the previous 16 months since the donor disclosure
requirement took effect to support their assertion that compliance has been
burdensome or onerous. Instead, they have opted to bring a facial challenge; but
47 Docket 18-1 at 9.
48 Docket 30 at 13 (quoting Docket 18-1 at 9).
49 Docket 30 at 13.
50 Docket 30 at 8.
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Plaintiffs cannot sustain a facial challenge based on “‘hypothetical’ or ‘imaginary’
cases.”51 In contrast, the State has filed seven screen shots of the relevant
Statement of Contributions Form 15-5, which appears to be a straightforward
document that enables a donor to promptly comply with the reporting
requirement.52
Plaintiffs rely on Americans for Prosperity Foundation v. Bonta, where the
Supreme Court invalidated a donor disclosure requirement.53 But Americans for
Prosperity is not a case concerning electioneering by independent expenditure
entities. Rather, it concerned the right of private charities to withhold donor names,
and it contained an extensive record that demonstrated that government
investigators had only rarely used the donor information to detect charitable fraud,
the asserted state interest in that case.54 In contrast, here, the donor disclosure
requirement in Section 7 is directly related to the State’s important interest in
promptly providing voters with information about the source of funding of political
advertisements by independent expenditure entities. Moreover, the donor
disclosure requirement is tailored to that interest through both the $2,000 minimum
and the temporal requirements, discussed below.55
51 Yamada, 786 F.3d at 1201 (citing Wash. State Grange, 552 U.S. at 450).
52 See Docket 30-2 (Hebdon Decl., Ex. B).
53 See Docket 18-1 at 8.
54 See Ams. for Prosperity Found., 141 S. Ct. at 2381.
55 Alaska Stat. § 15.13.040(r); see also Docket 30 at 10.
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b. The Donor Disclosure Requirement Is Not Unduly Duplicative
Plaintiffs next contend that the donor disclosure requirement is
unconstitutional because it imposes a “burden on citizens even though [the State]
already has a source of the same information.”56 Plaintiffs maintain that because
the “[d]isclosure of donations by the donee political entitles” is already required by
Alaska Statute § 15.13.040(d), “the burden on individual donors is great, and the
marginal gain to the state is very small.”57
“fulfills any legitimate interest Alaska may claim.”58 Accordingly, Plaintiffs assert
that “[t]here is no state interest in requiring individual donors to report information
to the government that the government already has.”59
Defendants respond that the donor disclosure requirement complements, as
opposed to duplicates, other requirements of Alaska campaign finance law.
Specifically, Defendants contend that the donor disclosure requirement traces the
“true source” of the donor’s funds, such that “the law reasonably obligates the
donor to provide and certify the truth of this information.”60 In the absence of the
donor disclosure requirement, Defendants maintain that “[p]lacing this obligation
56 Docket 18-1 at 10.
57 Docket 18-1 at 11.
58 Docket 18-1 at 10; see Alaska Stat. § 15.13.040(d) (“Every person making an independent
expenditure shall make a full report of expenditures made and contributions received, upon a
form prescribed by the commission, unless exempt from reporting.”)).
59 Docket 18-1 at 10.
60 Docket 30 at 12.
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solely on the recipient would lead to incomplete or inaccurate reporting of true
sources,” whereas “[r]equiring both sides of the transaction to report . . . ensures
that no transactions are missed.”61
The Court finds that the donor disclosure requirement in Section 7 overlaps
with, but is not completely duplicative of, the reporting requirements for
independent expenditure entities. As ABE notes, “the contributor will always be in
a better position than the [independent expenditure entity] to both identify the true
source of its own contribution and quickly report it.”62 Requiring the donor, in
addition to the recipient, to report contributions over $2,000 does not unreasonably
burden the donor. Rather, requiring prompt disclosure by both parties maximizes
the likelihood of prompt and accurate reporting of the information when it is most
useful to the electorate.63
Plaintiffs’ reliance on McCutcheon v. FEC, 572 U.S. 185, 221 (2014), is
unavailing. In McCutcheon, the Supreme Court considered the constitutionality of
a regime that imposed limitations on both candidate contributions and
expenditures. Here, by contrast, Plaintiffs are challenging the constitutionality of
disclosure requirements. As such, the Supreme Court’s “prophylaxis-upon-
prophylaxis” analysis is inapplicable to the present litigation.
61 Docket 30 at 12.
62 Docket 33 at 21.
63 Docket 33 at 22 & n.102; see Yes on Prop B v. City & County of San Francisco, 440 F. Supp.
3d 1049, 1059 (N.D. Cal. 2020).
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Because the donor disclosure requirement is closely tailored to providing
valuable funding information to the State and its citizens, Plaintiffs are not likely to
succeed on their claim that Sections 7 and 15 of Ballot Measure 2 are
unconstitutional because they are duplicative of other reporting requirements.
c. The Temporal Parameters of the Donor Disclosure
Requirement Are Not Unconstitutional
Plaintiffs also take issue with the provisions of Section 7 that extend the
reporting requirement beyond a current election cycle to contributions made to an
entity that made independent expenditures in the previous election cycle, as well
as to contributions made to an entity that the donor “knows or has reason to know
is likely to make independent expenditures in one or more candidate elections in
the current election cycle.”64 Plaintiffs assert that “the government has no business
requiring disclosure of current donations to groups that engaged in independent
expenditures in the past or may do so in the future.”65 Plaintiffs maintain that the
temporal reach of the donor disclosure requirement is not “tied with precision to
specific election periods” or “carefully tailored” to any sufficiently important
governmental interest.66
64 Alaska Stat. § 15.13.040(r).
65 Docket 18-1 at 11.
66 Docket 18-1 at 11–12 (citing Nat’l Ass’n for Gun Rights, Inc. v. Mangan, 933 F.3d 1102, 1117–
18 (9th Cir. 2019)).
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In response, Defendants acknowledge that the disclosure law “might sweep
in some excess information at the margins” as it applies to contributions made
during a current election cycle to an entity that has not made any expenditures in
the current cycle, but did make them in the past cycle.67 However, Defendants
argue that this does not make the disclosure requirement impermissibly overbroad,
as it furthers the law’s purpose. Defendants explain: “If the law covered only
contributions to entities that had already made expenditures [in the current
election] cycle, many relevant contributions would be missed” because “an entity
could amass a secret war chest and delay reporting by beginning its expenditures
at the last minute, leaving voters to sort through reports after the election.”68
Foremost, the Court reiterates that Plaintiffs cannot sustain a facial
challenge to the donor disclosure provisions of Ballot Measure 2 based on
“‘hypothetical’ or ‘imaginary’ cases.”69 Plaintiffs have not submitted any evidence
that they have been impacted by the temporal scope of the donor reporting
requirement. Nor have they demonstrated that a “substantial number” of
contributions subject to the donor reporting requirement are unconstitutional in
relation to the “plainly legitimate sweep” of the requirement.70 The Court finds that
67 Docket 30 at 10.
68 Docket 30 at 10.
69 Yamada, 786 F.3d at 1201 (citing Wash. State Grange, 552 U.S. at 450).
70 Ams. for Prosperity Found., 141 S. Ct. at 2387.
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the temporal reach of Section 7 is substantially related and narrowly tailored to
the State’s important interest in providing voters with prompt information related to
the funding of political advertisements in a current election cycle. Specifically,
requiring the disclosure of donations made to independent expenditure entities in
the previous election cycle and are likely to make independent expenditures in the
current election cycle helps ensure that voters will promptly have access to
complete information regarding the source of independent expenditures in
advance of an election, and prevents donors from sidestepping disclosure
requirements by strategically donating in the final stretch of an election cycle.
For the foregoing reasons, Plaintiffs have not established a likelihood of
success on the merits of Count I.71
B. Count II
In Count II, Plaintiffs assert that “[t]he entirety of AS 15.13.090, as modified
by Sections 11 and 12 of Ballot Measure 2, is unconstitutional” because it
“[c]ompel[s] speakers to recite government-imposed scripts on campaign
materials” and discriminates against nonresidents in violation of the First
Amendment.72 Alaska Statute § 15.13.090, as modified by the Measure, requires
71 The Court has applied the more stringent “likelihood of success on the merits” analysis;
however, applying the more relaxed “substantial question” analysis would yield the same result.
Even assuming, without deciding, that the “balance of hardships tips sharply in the plaintiff’s
favor,” Plaintiffs have not carried their burden at this stage of the litigation to demonstrate that
an adequately “serious question” exists with regard to the constitutional validity of the donor
disclosure provisions in Sections 7 and 15.
72 Docket 40 at 18–20.
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political advertisements by independent expenditure entities to include three on-
ad disclaimers: (1) a sponsor disclaimer; (2) a top-three-donor disclaimer; and
(3) when applicable, an out-of-state disclaimer.73
1. Standard of Review
As a threshold matter, the parties disagree as to which standard of review
applies to the disclaimer requirements: strict scrutiny or exacting scrutiny. Plaintiffs
maintain that the disclaimer requirements are subject to strict scrutiny because
they are content-based requirements that “force[] Plaintiffs to alter their
advertisements that seek to inform or convince people on a particularly political
issue, to also encourage viewers or listeners to consider Plaintiffs’ own donors.”74
They point to National Institute of Family & Life Advocates (NIFLA) v. Becerra, in
which the Supreme Court applied strict scrutiny to strike down a California statute
compelling crisis pregnancy centers to post notices about the availability of
abortion services.75 Plaintiffs also rely on ACLU of Nevada v. Heller, a case in
which the Ninth Circuit applied strict scrutiny to a Nevada law that “require[d]
certain groups or entities publishing ‘any material or information relating to an
73 Plaintiffs do not specifically challenge the sponsor disclaimer by itself but do assert that the
three disclaimers are overly burdensome when considering their cumulative effect because
“they take up such a significant portion of an advertisement.” See Docket 40 at 19–20, ¶ 98.
74 Docket 18-1 at 14-15. Specifically with regard to the out-of-state disclaimer, Plaintiffs also
assert that strict scrutiny is the appropriate standard because it is a “law[] that discourage[s] a
certain class of people from making political contributions and thus burden[s] political speech.”
Docket 18-1 at 24.
75 138 S. Ct. 2361 (2018); see also Docket 18-1 at 13–14.
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election, candidate or any question on a ballot’ to reveal on the publication the
names and addresses of the publication’s financial sponsors.”76 There, the court
recognized a “constitutionally determinative distinction between on-publication
identity disclosure requirements and after-the-fact reporting requirements,” holding
that the former should receive strict scrutiny because such requirements “involve
the direct alteration of the content of a communication.”77
Defendants, by contrast, contend that exacting scrutiny is the appropriate
standard because the Supreme Court applied that standard to “both disclosures
and disclaimers” in Citizens United, “even though the plaintiff had advocated for
strict scrutiny—like the plaintiffs here—on the theory that disclaimers constitute
‘compelled speech’ or ‘content-based restrictions on political speech.’”78 They
assert that Heller is no longer good law because it was decided before Citizens
United and maintain that the Ninth Circuit now “recognizes Citizens United as the
controlling law on political disclaimers.”79 Plaintiffs reply that Citizens United is
inapposite because it “said not one word about compelled speech” and only
addressed a “stand by your ad” disclaimer.80 They assert that the Measure “goes
76 378 F.3d 979, 981, 992 (9th Cir. 2004) (emphasis omitted); see also Docket 18-1 at 18.
77 Heller, 378 F.3d at 994.
78 Docket 30 at 14–15 (citing Citizens United, 558 U.S. at 366; Br. for Appellant at 43–44,
Citizens United, 558 U.S. 310 (Case No. 08-205), 2009 WL 6147).
79 Docket 30 at 15 (citing Yamada, 786 F.3d at 1202).
80 Docket 39 at 10.
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far beyond” such a disclaimer and that “[t]he State’s interest in forcing a candidate
to acknowledge his own ad is different from exposing donors on the face of the
ad.”81
The Court finds that, to the extent that the Ninth Circuit’s decision in Heller
can be read as requiring strict scrutiny for all on-ad political disclaimer
requirements, such a holding is “clearly irreconcilable” with the Supreme Court’s
subsequent decision in Citizens United.82 Contrary to Plaintiffs’ assertions, the
Supreme Court did consider compelled speech in Citizens United because one of
the challenged statutory provisions that the Supreme Court upheld required that
“televised electioneering communications funded by anyone other than a
candidate must include a disclaimer” stating the “name and address (or Web site
address) of the person or group that funded the advertisement.”83 The Supreme
Court made clear that its rationale in employing exacting scrutiny applied to both
disclosures and disclaimers, explaining that “[d]isclaimer and disclosure
81 Docket 39 at 10.
82 See United States v. Delgado-Ramos, 635 F.3d 1237, 1239 (9th Cir. 2011) (quoting Miller v.
Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc)). For a Supreme Court decision to
“effectively overrule[]” Ninth Circuit precedent, the Supreme Court decision must “undercut the
theory or reasoning underlying the prior circuit precedent in such a way that the cases are
clearly irreconcilable.” Id. (quoting Miller, 335 F.3d at 900). It appears that Citizens United and
Heller are irreconcilable in this respect because Citizens United’s reasoning in applying exacting
scrutiny, which distinguished on-ad disclaimer and disclosure requirements as less burdensome
than outright caps or bans on electioneering activities, undercuts the reasoning underlying
Heller’s application of strict scrutiny, which instead turned on the temporal distinction between
on-publication and after-the-fact disclosure requirements. Compare Citizens United, 558 U.S. at
366, with Heller, 378 F.3d at 994.
83 See Citizens United, 558 U.S. at 366 (citing 2 U.S.C. § 441d(a)(3)).
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requirements may burden the ability to speak, but they ‘impose no ceiling on
campaign-related activities,’ and ‘do not prevent anyone from speaking.’”84
Indeed, the Ninth Circuit has since recognized Citizens United as controlling on
the appropriate level of scrutiny for political disclaimer requirements.85 In Chula
Vista Citizens for Jobs & Fair Competition v. Norris, for example, the Ninth Circuit,
sitting en banc, cited Citizens United to conclude that exacting scrutiny applied to
California’s statutory requirement that the name of the official proponent of a ballot
initiative must appear on each section of the initiative petition that is circulated to
voters.86
Thus, even if a disclosure or disclaimer is viewed as compelling speech,
exacting scrutiny is the appropriate standard to apply in considering Plaintiffs’
likelihood of success on the merits of Count II. To survive exacting scrutiny, the
disclaimer requirements must be “substantially related to a sufficiently important
84 Id. at 366 (citation omitted) (first quoting Buckley, 424 U.S. at 64; then quoting McConnell,
540 U.S. at 201); see also Reed, 561 U.S. at 196 (stating that disclosure requirements are
subject to less demanding standard of review because they are “not a prohibition on speech”).
85 See Montanans for Cmty. Dev. v. Mangan, 735 Fed. App’x 280, 284 (9th Cir. 2018) (citing
Citizens United, 558 U.S. at 369) (applying exacting scrutiny to “paid-for” attribution requirement
for electioneering communications); Chula Vista Citizens for Jobs & Fair Competition v. Norris,
782 F.3d 520, 535–36 (9th Cir. 2015) (en banc) (citing Citizens United, 558 U.S. at 366–67);
Yamada, 786 F.3d at 1194 (applying exacting scrutiny to requirement that political
advertisements include disclaimer stating whether they are broadcast or published with approval
of a candidate); see also San Franciscans Supporting Prop B v. Chiu, Case No. 22-cv-02785-
CRB, 2022 WL 1786573, at *4 (N.D. Cal. June 1, 2022) (concluding that Heller’s analysis of
disclaimer law as content-based restriction subject to strict scrutiny is no longer good law in light
of Citizens United and other Supreme Court cases applying exacting scrutiny to disclaimers),
appeal filed, Case No. 22-15824 (9th Cir. June 6, 2022).
86 782 F.3d at 535–36 (citing Citizens United, 558 U.S. at 366–67).
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governmental interest”87 and “be narrowly tailored to the government’s asserted
interest.”88
2. Sufficiently Important Governmental Interest
As discussed above, the Court finds that the State has a sufficiently
important governmental interest in providing voters with information related to the
funding of political advertisements by independent expenditure organizations.
While Plaintiffs argue in their motion that the out-of-state disclaimer does not serve
an important state interest in preventing corruption,89 Defendants respond that they
do not “seek[] to justify the out-of-state disclaimer as a means of preventing quid
pro quo corruption.”90 Thus, the Court will only consider whether the disclaimers
are justified based on the State’s informational interest.
3. Substantial Relation
Plaintiffs assert that the on-ad disclaimer requirements significantly burden
their First Amendment rights in three ways and that these burdens are not justified
by a substantial and narrowly tailored relationship between the disclaimers and the
87 Brumsickle, 624 F.3d at 1005; cf. Ams. for Prosperity Found., 141 S. Ct. at 2383 (“Under strict
scrutiny, the government must adopt ‘the least restrictive means of achieving a compelling state
interest,’ rather than a means substantially related to a sufficiently important interest.” (citation
omitted) (quoting McCullen v. Coakley, 573 U.S. 464, 478 (2014))).
88 Ams. for Prosperity Found., 141 S. Ct. at 2383.
89 See Docket 18-1 at 24.
90 Docket 30 at 20.
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State’s informational interest.91 The Court discusses each of Plaintiffs’ claimed
burdens in turn.
a. Top-Three-Donor Disclaimer
Plaintiffs assert that the disclaimer requirements, particularly the top-three-
donor disclaimer contained in Section 11 of the Measure, burden their First
Amendment rights because they “force[] them to speak a message they do not
want to voice.”92 They maintain that the top-three-donor disclaimer is akin to the
crisis pregnancy center notices invalidated in NIFLA because Plaintiffs “believe
strongly in the right to privacy for citizens and would not include their donors’
information in their advertisements if not forced to by the law.”93
Given this burden, Plaintiffs contend that the top-three-donor disclaimer is
not substantially related to an informational interest or narrowly tailored because
the State’s interest in informing the electorate is already served by other disclosure
requirements; thus, the on-ad top-three-donor disclaimer “only provides, at best, a
marginal gain in convenience for viewers to see these names on the ad itself,
rather than having to trouble themselves to find it on the Internet.”94 Further,
Plaintiffs assert that “[t]he on-ad sponsor disclaimer (the name of the independent
91 Docket 18-1 at 21, 26–27.
92 Docket 18-1 at 16.
93 Docket 18-1 at 16–17 (“Forcing an organization committed to limited government and
personal freedom to announce the names of its donors in advertisements is similar to forcing
pro-life groups to share information about abortion access.”).
94 Docket 18-1 at 19.
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expenditure committee) alone easily satisfies any information interest” and that
conveying the top three donors on the ad may actually “decrease viewers’
information by giving them a distorted view of the organization’s overall donors.”95
Defendants disagree with Plaintiffs’ assessment of the burdens created by
the top-three-donor disclaimer. They contend that NIFLA is not analogous
because that case “was not about political disclaimers, and the disclaimers there
were much more burdensome.”96 Further, Defendants maintain that there is a
sufficiently substantial relation between the top-three-donor disclaimer
requirement and the government’s informational interest, asserting that: (1) the on-
ad sponsor disclaimer alone is insufficient because “disclosing donor information
prevents entities from ‘hiding behind dubious and misleading names’ . . . while
trying to influence the outcome of elections”;97 and (2) including “[donor]
information in the ads themselves advances [the government’s informational
95 Docket 18-1 at 20. In addition, Plaintiffs cite McIntyre v. Ohio Elections Com’n, 514 U.S. 334,
348–49 (1995), for the proposition that “[t]he simple interest in providing voters with additional
relevant information does not justify a state requirement that a writer make statements or
disclosures she would otherwise omit.” Docket 18-1 at 19. However, McIntyre is factually
distinct from this litigation, as it involved “individuals acting independently and using only their
own modest resources” to engage in unorganized political speech regarding ballot initiatives.
See 514 U.S. at 351–52; cf. Docket 33 at 30 (Intervenor-Def.’s Mot. to Dismiss) (“Here, there
are already minimum contribution and expenditure thresholds to protect limited and
unsophisticated political speech from arguably burdensome requirements, and Ballot Measure 2
did not change Alaska’s disclaimer and disclosure requirements for ballot initiatives.” (footnote
omitted)). Indeed, as the Supreme Court’s more recent decision in Citizens United
demonstrates, an informational interest can be sufficiently important to justify disclaimer
requirements for electioneering communications made by independent expenditure entities.
See 558 U.S. at 369–71.
96 Docket 30 at 16.
97 Docket 30 at 16 (quoting McConnell, 540 U.S. at 196–97).
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interest] more efficiently and effectively than requiring voters to search for
disclosure forms online.”98
In support of these contentions, Defendants cite Gaspee Project v. Mederos,
a recent case in which the First Circuit applied exacting scrutiny to uphold a Maine
law requiring on-ad disclaimers identifying the ad sponsor’s top five donors.99 In
Gaspee, the First Circuit rejected the plaintiffs’ arguments that the disclaimer
“serve[d] no informational interest and [was] essentially redundant of [a separate]
disclosure requirement.”100 The court determined that the on-ad disclaimer was
“not entirely redundant to the donor information revealed by public disclosures”
because it was “a more efficient tool for a member of the public who wishes to
know the identity of the donors backing the speaker.”101 Further, the court noted
that an on-ad disclaimer “may be more effective in generating discourse” because
it “may elicit debate as to both the extent of donor influence on the message and
the extent to which the top five donors are representative of the speaker’s donor
base.”102
98 Docket 30 at 17.
99 13 F.4th 79, 91 (1st Cir. 2021), cert. denied, Case No. 21-890, 2022 WL 1205841 (U.S.
Apr. 25, 2022); see also Docket 30 at 17–18.
100 Gaspee Project, 13 F.4th at 91.
101 Id. (“The public is ‘flooded with a profusion of information and political messages,’ and the
on-ad donor disclaimer provides an instantaneous heuristic by which to evaluate generic or
uninformative speaker names.” (quoting Nat’l Org. for Marriage v. McKee, 649 F.3d 34, 57 (5th
Cir. 2011))).
102 Id.
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Balancing the burdens against the governmental interest, the Court finds
that the on-ad top-three-donor disclaimer requirement is substantially related to
the important governmental interest in an informed electorate and is narrowly
tailored to further that interest. The Court agrees with Defendants that the burden
here on independent expenditure entities is much lower than in NIFLA, where pro-
life pregnancy crisis centers were required to “inform women how they can obtain
state-subsidized abortions,” which was “the very practice that [they] are devoted
to opposing.”103 Here, while Plaintiffs may hold broad ideological concerns about
privacy, the on-ad top-three-donor disclaimer does not require them to convey a
message that is directly contrary to whatever political statement they seek to make
in their electioneering communications.
With regard to the substantial relation between the burdens created by the
on-ad top-three-donor disclaimer requirement and the government’s informational
interest, the Court finds the reasoning of the First Circuit in Gaspee Project
persuasive. While voters have access to donor information through the required
disclosures to the APOC, the on-ad placement of some of that information provides
a far more efficient and effective form of disclosure. As the Supreme Court noted
in Citizens United, there is value in the “prompt disclosure” of such information, as
it “can provide shareholders and citizens with the information needed to hold
corporations and elected officials accountable for their positions and
103 NIFLA, 138 S. Ct. at 2371.
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supporters.”104 Given the modest nature of the burden imposed by the on-ad top-
three-donor disclaimer requirement and the fact that exacting scrutiny does not
require that the government use the least restrictive means possible, there is a
sufficient relationship between the government’s informational interest and the on-
ad top-three-donor disclaimer requirement to withstand constitutional scrutiny.105
Plaintiffs are unlikely to succeed on the merits of Count II based on the on-ad top-
three-donor disclaimer requirement.
b. Out-of-State Disclaimer
Plaintiffs challenge the out-of-state disclaimer requirement in Section 12 of
the Measure as unduly burdensome because it discriminates against nonresidents
without sufficient justification, asserting that “[o]ut-of-state campaign contribution
restrictions like Alaska’s are routinely invalidated by courts.”106 Plaintiffs primarily
rely on Thompson v. Hebdon, a recent decision in which the Ninth Circuit held that
Alaska’s nonresident aggregate contribution limit, which barred candidates from
accepting more than $3,000 per year from non-Alaskans, violated the First
104 Citizens United, 558 U.S. at 371.
105 See Family PAC, 685 F.3d at 809 (upholding disclosure requirements when they “impose[d]
only modest burdens on First Amendment rights, while serving a governmental interest in an
informed electorate that is of the utmost importance”).
106 Docket 18-1 at 23–25 (citing Thompson v. Hebdon, 7 F.4th 811 (9th Cir. 2021); Landell v.
Sorrell, 382 F.3d 91 (2d Cir. 2004); SD Voice v. Noem, 380 F. Supp. 3d 939 (D.S.D. 2019)).
Plaintiffs also cite two cases regarding bans on out-of-state petition circulators. Docket 18-1 at
26 (citing We the People PAC v. Bellows, 519 F. Supp. 3d 13 (D. Me. 2021), appeal filed, Case
No. 21-1149 (1st Cir. Feb. 23, 2021); Citizens in Charge v. Gale, 810 F. Supp. 2d 916 (D. Neb.
2011)).
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Amendment.107 There, the court concluded that the contribution limit did not serve
an anti-corruption interest and that even if it did, the limit was not sufficiently
tailored to serve that interest.108
Plaintiffs assert that there is not a substantial relation between the out-of-
state disclaimer and the State’s informational interest because “the donors to
independent expenditure groups are already disclosed to the state, and to the
public on the state’s website, so one can easily determine whether any particular
group draws it support from outside Alaska.”109 Further, they maintain that the
disclaimer requirement is not narrowly tailored due to the Measure’s over-inclusive
definition of “outside-funded entity”: a group that takes donations from a true
source with a principal place of business outside Alaska.110 Plaintiffs suggest that
“one’s principal place of business is a poor proxy for one’s interest in Alaska’s
elections,” particularly because a donor may have “significant operations in Alaska”
while “happening to be headquartered elsewhere.”111
Defendants disagree, maintaining that the out-of-state disclaimer is
“narrowly tailored to the important state interest in informing voters,” particularly
when entities use misleading names, such as “Families of the Last Frontier,” that
107 7 F.4th at 824.
108 See id. at 824–25.
109 Docket 18-1 at 26.
110 Docket 18-1 at 27.
111 Docket 18-1 at 27.
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imply that they are primarily funded by Alaska residents.112 While Defendants
acknowledge that donors with an out-of-state principal place of business may still
have a valid interest in Alaska’s elections, they note that those donors are not
barred from participating—the Measure only requires disclosure.113
As Defendants note, Thompson and the other cases that Plaintiffs cite
concerned contribution limits or bans on non-resident petition circulators rather
than the type of disclaimer requirement at issue here.114 While the out-of-state
disclaimer places some burden on political speech, it is not nearly as burdensome
as an outright ban or cap on contributions or certain political activities. It does not
limit how much out-of-state donors can give, nor does it even directly burden out-
of-state donors; rather, it burdens independent expenditure entities that receive
over a certain percentage of their funds from out-of-state donors. Thus, given the
relatively minimal burden it imposes, there is a sufficiently substantial relation
between the out-of-state disclaimer and the State’s informational interest.
With respect to tailoring, the Court again finds the reasoning of Gaspee
Project instructive. While there are other avenues for voters to learn about
independent expenditure entities’ funding sources, an on-ad disclaimer makes that
112 Docket 30 at 19–20; see, e.g., Docket 33 at 11–12, 12 n.57 (citing Docket 33-1 at 4, 20,
¶¶ 11, 20 (Kendall Aff.)) (noting that Families of the Last Frontier received over 99.5% of its
funding from out-of-state donations in 2018).
113 Docket 30 at 20.
114 Docket 30 at 19 (“The plaintiffs’ arguments about this all rest on the mistaken premise that
this disclaimer is analytically equivalent to banning or limiting the quantity of out-of-state speech
in Alaska’s elections.”).
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information far more accessible and presents it at a highly useful time for voters
attempting to weigh competing political messages. And though an entity’s principal
place of business may be an imperfect proxy for its interest in Alaska’s elections,
it is likely an accurate measure in most cases; exacting scrutiny does not require
a perfect fit between a state’s important informational interest and the means used
to further that interest. Thus, the Court finds that the out-of-state disclaimer has a
substantial relation to Defendants’ informational interest and is narrowly tailored to
further that interest. Plaintiffs are unlikely to succeed on the merits of Count II
based on the out-of-state disclaimer requirement.
c. Ad Space
Plaintiffs also assert that all three disclaimers, taken together, “restrict[] their
ability to speak their preferred message” because the disclaimers consume
substantial ad space.115 They primarily rely on American Beverages Association
v. City & County of San Francisco, a case in which the Ninth Circuit overturned a
district court’s denial of a preliminary injunction against enforcement of a
mandatory health warning on ads for sugar-sweetened beverages.116 There, the
Ninth Circuit held that the disclaimer impermissibly compelled speech because the
warning was required to “occupy at least 20% of the advertisement,” but expert
115 Docket 18-1 at 16, 22.
116 916 F.3d 749, 754 (9th Cir. 2019); Docket 18-1 at 22; Docket 39 at 11–12.
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testimony showed that a 10% warning would have sufficed.117 Thus, “the 20%
requirement [was] not justified and [was] unduly burdensome when balanced
against its likely burden on protected speech.”118
Defendants respond that Plaintiffs “offer no evidence to support their
conclusory assertions that the disclaimers will take up too much space in their
advertisements.”119
The Court finds that American Beverage Association is not controlling here,
as that case concerned commercial speech. Different considerations are at play
when regulating political advertisements, and the State’s interest in an informed
electorate may justify more burdensome disclaimers. Indeed, in Citizens United,
the disclaimer requirement upheld by the Supreme Court required the plaintiff to
devote four seconds of a ten-second ad to a disclaimer—a full 40% of the ad
space.120 There, the Supreme Court explicitly rejected the plaintiff’s argument that
the disclaimer was impermissible because it “decrease[d] both the quantity and
117 916 F.3d at 754, 757.
118 Id. at 757. However, the court was careful to note that its holding was based on the specific
facts of the case; it “[did] not hold that a warning occupying 10% of product labels or
advertisements necessarily is valid, nor [did it] hold that a warning occupying more than 10% of
product labels or advertisements necessarily is invalid.” Id.
119 Docket 30 at 17.
120 See Citizens United, 558 U.S. at 320, 366, 371.
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effectiveness of the group’s speech by forcing it to devote four seconds of each
advertisement to the spoken disclaimer.”121
Moreover, unlike in American Beverage Association, the disclaimers here
are not required by law to take up a certain percentage of ad space; nor do
Plaintiffs offer evidence that shorter or less prominent disclaimers would serve the
State’s informational interest equally well.122 While Plaintiffs assert that the
required disclaimers “easily and obviously consume 20 percent of a standard thirty-
or sixty-second TV or radio ad,”123 they do not supply one of their advertisements
as an example or otherwise provide evidentiary support for this claim sufficient to
demonstrate that a “substantial number of [the disclaimer requirements’]
applications are unconstitutional, judged in relation to the statute’s plainly
legitimate sweep.”124
In sum, the Court finds that Plaintiffs have not demonstrated that the ad
space consumed by the three disclaimers is unduly burdensome in light of the vital
informational interest served by those disclaimers. The specifics of how the
disclaimers must be displayed or spoken are substantially related to the State’s
important informational interest and are narrowly tailored to serve that interest.
121 Id. at 368.
122 Cf. Am. Beverages Ass’n, 916 F.3d at 757.
123 Docket 39 at 11.
124 Ams. for Prosperity Found., 141 S. Ct. at 2387.
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Plaintiffs are thus unlikely to succeed on the merits of Count II based on the ad
space consumed by the disclaimers.125
C. Count III
In Count III, Plaintiffs challenge Sections 6, 9, 14, and 18 of Ballot
Measure 2. Together, these sections require an independent expenditure entity to
identify the “true source” of all contributions it receives of over $2,000. Plaintiffs
assert that “[c]ompelling primary and secondary donor disclosure violates the First
Amendment.”126 Plaintiffs contend that Ballot Measure 2’s “true source”
requirement burdens speech in multiple significant ways, including by demanding
that recipients disclose information they may not have, limiting who an independent
expenditure entity may solicit funds from, and sweeping uninterested third parties
into Alaskan elections.127 Plaintiffs also assert that “Ballot Measure 2 violates [the]
freedom of private association by compelling independent expenditure groups to
track and disclose not only their own donors, but also donors to those donors, and
125 The Court has applied the more stringent “likelihood of success on the merits” analysis to the
Plaintiffs’ challenges to the disclaimer requirements; however, applying the more relaxed
“substantial question” analysis would yield the same result. Even assuming, without deciding,
that the “balance of hardships tips sharply in [their] favor,” Plaintiffs have not carried their burden
at this stage of the litigation to demonstrate that an adequately “serious question” exists with
regard to the disclaimer requirements.
126 Docket 40 at 20.
127 Docket 18-1 at 30–31.
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donors to those donors’ donors, reaching out indefinitely to what it defines as the
‘true source’ of the money.”128
1. Standard of Review
Plaintiffs assert, and Defendants do not contest, that exacting scrutiny
applies to Claim III.129 The Court applies that standard to the challenged sections.
2. Sufficiently Important Governmental Interest
As discussed above, the Court finds that the State has a sufficiently
important governmental interest in providing voters with information related to the
funding of political advertisements by independent expenditure entities.
3. Substantial Relation
Plaintiffs contend that the recipient disclosure obligations of Ballot
Measure 2 are not substantially related to the government’s stated interest
because these sections “could have been more narrowly tailored by only requiring
disclosure of donors who actively participating [sic] in determining how these funds
are used.”130 Plaintiffs assert that because the “‘true source’ requirement is not
‘tied with precision’ or ‘carefully tailored’ to actual electoral activity,” these sections
of Ballot Measure 2 fail to meet the exacting scrutiny standard.131 Plaintiffs assert
128 Docket 18-1 at 28.
129 Docket 18-1 at 28; Docket 30 at 21–27.
130 Docket 40 at 21, ¶ 105 (citing Nat’l Ass’n of Mfrs. v. Taylor, 582 F.3d 1 (D.C. Cir. 2009)).
131 Docket 18-1 at 29.
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that the First Amendment protects major contributors to independent expenditure
entities from being required to disclose the “true source” of the contribution to the
independent expenditure entity, that is in turn required by these sections of Ballot
Measure 2 to report this information to the State.
Defendants respond that the State and its voters have an important interest
in knowing who is contributing to independent expenditure entities.132 And the ABE
maintains that “there is no constitutional right to make ‘dark money’
contributions.”133
The Court finds that Ballot Measure 2’s “true source” definition, together with
its requirement that independent expenditure entities report these true sources to
the State, are both substantially related and narrowly tailored to fulfill the State’s
informational interest in informing voters about the actual identity of those trying to
influence the outcome of elections.
The Court further notes that Plaintiffs’ hypothetical examples have not
demonstrated that the true source disclosure requirements in Sections 6, 9, 14,
and 18 are inadequately tailored. Plaintiffs lack standing to maintain an action
based on hypothetical scenarios by non-parties to this action. And the Ninth Circuit
132 Docket 30 at 21.
133 Docket 33 at 35.
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has stressed that courts are not to “speculate about ‘hypothetical’ or ‘imaginary’
cases” when evaluating a facial challenge to a disclosure requirement.134
For these reasons, the Court finds that the true source reporting
requirements in Sections 6, 9, 14, and 18 of Ballot Measure 2 withstand review
under exacting scrutiny, and thus Plaintiffs are not likely to succeed on the merits
of Claim III.135
CONCLUSION
Preliminary injunctive relief is an extraordinary remedy, and in the context of
elections, the Supreme Court has recognized that “lower federal courts should
ordinarily not alter . . . election rules on the eve of an election.”136 Plaintiffs waited
over one year to seek preliminary injunctive relief; such “[a] delay in seeking a
preliminary injunction is a factor to be considered in weighing the propriety of
relief.”137 As set forth above, the Court has determined that Plaintiffs have not
demonstrated a likelihood of success on any of the three counts pleaded in their
134 Yamada, 786 F.3d at 1201 (9th Cir. 2015) (citing Wash. State Grange, 552 U.S. at 450).
135 The Court has applied the more stringent “likelihood of success on the merits” analysis to the
Plaintiffs’ challenges to the true source reporting requirements; however, applying the more
relaxed “substantial question” analysis would yield the same result. Even assuming, without
deciding, that the “balance of hardships tips sharply in [their] favor,” Plaintiffs have not carried
their burden at this stage of the litigation to demonstrate that an adequately “serious question”
exists with regard to the true source reporting requirements.
136 Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1207 (2020) (per
curiam) (citing Purcell v. Gonzalez, 549 U.S. 1 (2006) (per curiam); Frank v. Walker, 574 U.S.
929 (2014); Veasey v. Perry, 574 U.S. 951 (2014)).
137 See Lydo Enters., Inc. v. City of Las Vegas, 745 F.2d 1211, 1213 (9th Cir. 1984).
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complaint. Because the failure to meet any Winter factor warrants denial of a
motion for preliminary injunctive relief, the Court does not address the remaining
three Winter factors.
In light of the foregoing, IT IS ORDERED that Plaintiffs’ motions for a
preliminary injunction at Docket 7 and Docket 18 are DENIED.
DATED this 14th day of July, 2022 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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